The High Court sitting in Nairobi has dismissed a petition seeking to have the Independent Electoral and Boundaries Commission (IEBC) Chairman, Wafula Chebukati, committed to civil jail for refusing to open the 2017 presidential election servers for scrutiny.
The petition filed by human rights activist, Khelef Khalifa, sought to have Chebukati cited for contempt after he failed to obey a Supreme Court order directing him to give the Orange democratic Movement (ODM) leader, Raila Odinga, access to the controversial servers.
The petitioner wanted the Chairman jailed for six months and barred from overseeing the forthcoming August 9 elections. Moreover, he wanted the IEBC boss removed from office.
“To date, they have not allowed the people of Kenya access to the servers. This is not only contempt of the order of this court. As we approach the election, the court should send a warning that any contempt of its orders will not go unpunished,” read the petitioner's submission in part.
However, Justice Hedwig Ong’udi, in a ruling delivered on Friday, March 18, opined that the court lacks authority to deal with the matter nor can it remove Chebukati from the constitutional office.
Justice Ong’undi stated that process of removing the IEBC chair from office is well outlined in the Constitution of Kenya 2010.
Chebukati objected the petition arguing that no order was issued to him personally, neither was he sued in his personal capacity.
“In nullifying the 2017 presidential election results, the Supreme Court did not impute any unlawful intent or culpability on me or any other Commissioner,” argued Chebukati in his submission.
In a report released in 2019, IEBC claimed that then National Super Alliance (NASA), a coalition Raila Odinga used in his presidential contest, accessed the servers 34 times before the results were released. This was after making 54 attempts, 20 of them unsuccessfully.
On the other hand, Jubilee had 10 successful logins after 24 attempts.
The IEBC also dismissed claims that it defied orders by the Supreme Court stating that it granted parties access to the information system as ordered.
NASA, however, argued that it was denied access during the 48-hour window provided for by the court to verify claims of data manipulation.
The alleged failure by the IEBC to open the servers was among the reasons for the nullification of the August 8, 2017 presidential election results.
While nullifying President Uhuru Kenyatta’s victory, the apex court ordered the IEBC to grant petitioners and court-appointed tech experts read-only access to the servers.